Government Taking by Tweet?

Can a statement by a government employee or even the President cause a taking?

Condemnation of lands and property by government action is an old concept rooted in premise that the sovereign can take private lands for the good of the public. Our Bill of Rights to the Constitution ensures that the takee receive just compensation under due process of law. But how about when the governments actions do not actually involve physically taking the land or property but rather such actions diminish the value of the property? For instance, the government leaves your house alone, but excavates all around you. Obviously your property value is impinged in the picture to the right….but they didn’t take your property, right?

In such instance, the property is essentially rendered worthless. For this reason, we have a body of law called inverse condemnation. In such instances, the take of the property would be considered a “whole take” and the property owner would be entitled to full compensation.

Changing up the facts and modernizing this, can words by a government actor serve to inversely condemn property? I suppose that it depends upon several factors. The only case discovered in the courts that involves such a question is Filler v. United States, 602 Fed. Appx. 518 (Fed. Cir. 2015). This case explored whether a neurosurgeon could sue for inverse condemnation based upon the comments of a government employee using a government computer during work hours to post comments about Filler’s use a specific drug in his practice as a basis for diminution of the value of his medical license and practice. This Court ultimately dismissed this claim for failure to state a case upon which relief can be granted, but did hold that it had jurisdiction under the case through the Tucker Act “because Dr. Filler asserted a nonfrivolous takings claim that was not so “devoid of merit” or “insubstantial” as to undermine its jurisdiction.” The reason the court indicated that there was no claim, however, was because Filler could not show that the employee was “acting on behalf of the government.”

President-Elect Trump loves Twitter and apparently loves to govern by 140 words or less. His hastily worded statements have lasting effects. Just in the last two weeks, Trump has commented on two government contracts that have substantially diminished stock prices. See Lockheed Martin and Boeing.

If I were a shareholder in these companies, I should have some recourse against these artificial manipulations of the stock price that is designed to do nothing more than leverage the government’s bargaining position. If this is not inverse condemnation, it is an out right violation of SEC rules.

Be very careful when your government decides to hold your family or your property hostage so it gets what it wants.